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Flexible working encompasses a whole variety of arrangements, not just part-time working. These include: job sharing, home working, term-time-only working, and flexi-time schemes.
In the current economic climate, can businesses use flexible working arrangements either as part of ongoing cost cutting, or as alternatives to redundancy? There are legal issues in relation to both of these scenarios that employers should be aware of.
Consent is called for
It may be beneficial for an employer to have current employees switch to working either entirely at home or to reduced hours on a flexible basis. The best way to achieve this variation is with the consent of staff.
Where consent is given, it is advisable to clarify a number of points: will the new arrangements be on a permanent or temporary basis? If temporary, how long? Will there be a trial period? Will the employee have a right to return to the previous arrangements after a certain period?
Without consent, there are two options available. Which one an employer chooses will often depend on the terms of the employment contracts.
The first option is where the contract allows the employer to vary terms of employment. This will be the case if there are "flexibility" provisions - if the contract provides that the employee will work at whatever location, or whatever hours the company requests. However, even where flexibility exists on paper, only reasonable changes will be enforceable without the express consent of the employee.
For example, a contract that states a full-time employee will work 9am-5pm and such other hours as are necessary, would not permit the employer to reduce the hours unilaterally. On the other hand, a contract that allows the employer to make the employee work at "such location as it may reasonably require" would probably permit the employee to be required to work from home, although there is not yet any case law to support this.
If there is no such flexibility in the contract, the employer's other option is dismissal and re-engagement on new terms. This option, however, may leave the employer open to unfair dismissal claims.
The issues are different for an employer who, as part of a redundancy process, wants to offer reduced hours or flexible working packages as alternatives to redundancy. During any fair redundancy procedure, the employer must consider whether any suitable alternative e
